Jo and Ors v Secretary of State for Home Department (Section 55 duty) Nigeria
| Jurisdiction | UK Non-devolved |
| Judge | THE HON. MR JUSTICE MCCLOSKEY |
| Judgment Date | 16 July 2014 |
| Neutral Citation | [2014] UKUT 517 (IAC) |
| Date | 16 July 2014 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
[2014] UKUT 517 (IAC)
The President, The Hon. Mr Justice McCloskey
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
JO and Others (section 55 duty) Nigeria
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(1) The duty imposed by section 55 of the Borders Citizenship and Immigration Act 2009 requires the decision-maker to be properly informed of the position of a child affected by the discharge of an immigration etc function. Thus equipped, the decision maker must conduct a careful examination of all relevant information and factors.
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(2) Being adequately informed and conducting a scrupulous analysis are elementary prerequisites to the inter-related tasks of identifying the child's best interests and then balancing them with other material considerations.
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(3) The question whether the duties imposed by section 55 have been duly performed in any given case will invariably be an intensely fact sensitive and contextual one. In the real world of litigation, the tools available to the court or tribunal considering this question will frequently be confined to the application or submission made to Secretary of State and the ultimate letter of decision.
Appellants: In person and unrepresented
Respondent: Ms Johnstone, Senior Home Office Presenting Officer
The Appellants are citizens of Nigeria and members of the same family. The first-named Appellant is the mother (aged 32) of the other three Appellants who are aged 7, 5 and 4 respectively. The mother has resided in the United Kingdom since February 2005 and the three children were born here and have resided here throughout their lives. On 24 th April 2011, the Respondent served on the Appellants formal notice that they were persons liable to be removed from the United Kingdom. No action was taken and, by letter dated 19 th July 2013, the Appellants' representative made the case that the removal of his clients would infringe their rights under Article 8 ECHR. This was the stimulus for the series of inter-related decisions giving rise to the subsequent appeals.
By a series of linked decisions dated 05 September 2013, made on behalf of the Secretary of State for the Home Department (the “ Secretary of State”), the Appellants' applications for permission to remain in the United Kingdom were refused and, further, decisions were made to remove the Appellants from the United Kingdom. The Appellants duly exercised their right to challenge these decisions by appeal. By its determination promulgated on 10 March 2014, the First-tier Tribunal (the “ FtT”) dismissed the Appellants' appeals. Permission to appeal to this Tribunal was granted on the basis that the FtT's conclusions in respect of the Appellants' Article 8 ECHR claims were arguably vitiated by error of law.
There is but one material provision of the Immigration Rules in the present context. It is paragraph EX.1 of Appendix FM, which is in the following terms:
“ This paragraph applies if –
(i) The applicant has a genuine and subsisting parental relationship with a child who:
(aa) is under the age of 18 years;
(bb) is in the United Kingdom;
(cc) is a British citizen or has lived in the United Kingdom continuously for at least the 7 years immediately preceding the date of application; and
(ii) It would not be reasonable to expect the child to leave the United Kingdom….”
It is common case that this provision of the Rules has potential application to the eldest child of the family, who was born in July 2006.
The materials assembled on behalf of the Appellants and forwarded to the Secretary of State as part of their conjoined application for leave to remain in the United Kingdom consisted of a witness statement of the mother, a letter from the oldest child of the family, a series of letters from a number of supporters and acquaintances and various materials relating to the childrens' educational progress and achievements. What consideration and assessment of these representations and information was undertaken by the case worker/decision maker concerned? The only indication available is the following passage in the letter of decision:
“ Consideration has been given to section 55 of the Borders, Citizenship and Immigration Act 2009. There is no evidence to suggest that we have departed from section 55 as the family unit will be kept intact when removed from United Kingdom [ sic]. The family unit will be maintained and will be removed together to Nigeria. The child's father ….. has no valid leave to remain in the UK and is liable for removal. Child [ sic] has no ties in the UK other than to the parents and siblings. Your client is clearly familiar with the life and education system in Nigeria having spent the majority of her formative years in that country. She is able to support her children whilst they become used to living there. Your client entered the country illegally and had no basis to stay here. Therefore the time accrued by your client was through [ sic] illegally gained. Your client was reminded that they have no valid leave and that they should voluntary [ sic] depart the UK, on 13 January 2011, which they have not. The child had also gained the time without any legal basis in the country. Therefore it would not be unreasonable to expect the child to accompany her mother back to Nigeria. Your client was always aware of her precarious immigration status in the UK and continued to disregard immigration rules by continuing to stay when she had no legal basis thus acquiring the length she has. Your client was not in a category that would lead to settlement. ….
Your client therefore does not meet EX.1(CC) of Appendix FM of the Immigration Rules and it is considered that your client's removal is entirely proportionate and in line with Article 8(2) of the ECHR.”
[Emphasis added.]
The remaining text of the letter of decision is couched in relatively formulaic terms and of little moment in the context of these appeals.
It is clear from the determination of the FtT that the mother gave evidence of an irreparable fracture in relations between her and her mother and two younger siblings in Nigeria; she testified that she does not know whether they are still alive and, if so, where they live; the last communication occurred some seven years ago; she has no educational or vocational qualifications; she has made active voluntary contributions to activities in the childrens' school and the church with which they are associated; she has no resources of any kind; the family lives and depends on charitable donations and support for survival; she has no prospects of employment in Nigeria; and there is no prospect of the children being educated in the event of returning there.
Her evidence to this Tribunal was to like effect.
I turn to consider the applicable legal framework. In the context of the present appeals, this is dominated by section 55 of the Borders, Citizenship and Immigration Act 2009 (“ the 2009 Act”) provides:
The latter is the crucial, case-by-case duty to be discharged by decision makers and caseworkers. It is formulated in terms of an unqualified duty. The genesis of section 55 is found in a provision of international law, Article 3(1) of the UN Convention on the Rights of the Child (“UNCRC”, 1989):
“ In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”
In the field of immigration, therefore, the enactment of section 55 discharges an international law obligation of the UK Government. While section 55 and Article 3(1) of the UNCRC are couched in different terms, there may not be any major difference between them in substance, as the decided cases have shown. The final striking feature of section 55 is that it operates to protect all children who are in the United Kingdom: there is no qualification such as residence or nationality.
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“(1) The Secretary of State must make arrangements for ensuring that –
(a) the functions mentioned in sub-section (2) are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom ….
[this is the umbrella, administrative duty]
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(2) The functions referred to in sub-section (1) are –
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(a) any function of the Secretary of State in relation to immigration, asylum or nationality;
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(b) any function conferred by or by virtue of the Immigration Acts on an Immigration Officer …
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(3) A person exercising any of those functions must, in exercising the function, have regard to any guidance given to the person by the Secretary of State for the purpose of sub-section (1).
Section 55 has been considered by the United Kingdom Supreme Court in two cases. These decisions demonstrate, inter alia, the interaction between section 55 and Article 8 ECHR. While these provisions have separate juridical identities, they are clearly associated. Thus where the Article 8 family life equation involves children, section 55 is immediately engaged. In ZH (Tanzania) [2011] UKSC 4, Baroness Hale emphasised that the best interests of the child must be considered first – see paragraph [26] – while Lord Kerr stated:
“ [46] …….. A primacy of importance must be accorded to his or her best interests. This is not, it is agreed, a factor of limitless importance in the sense that it will prevail over all other considerations. It is a factor, however, that must rank higher than any other. It is not merely one consideration that weighs in the balance alongside other competing factors. Where the best...
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